The amendment to the law on the Constitutional Court of the Russian Federation which came into force on 14 December 2015 gave the Constitutional Court the power to declare “impossible to implement” judgements of a human rights body on the ground that its interpretation of the international treaty provisions at the basis of the judgement is inconsistent with the Constitution of the Russian Federation. As observed by Philip Leach and Alice Donald, even if the main objective of the law was to target judgements of the European Court of Human Rights (ECtHR), its scope is wider and covers decisions from any human rights body, including the UN Human Rights Committee. No equivalent powers exist under the national jurisdiction of any other Council of Europe (CoE) member state.

Russia’s Constitutional Court has recently ruled that it was “impossible to implement” the final judgement of the ECtHR delivered on 4 July 2013 in the case of Anchugov and Gladkov v. Russia. In this case, the ECtHR held that Russia’s blanket ban on convicted prisoners’ voting rights was incompatible with the European Convention on Human Rights (ECHR). The applicants brought the case because, according to Article 32(3) of the Russian Constitution, they were ineligible to vote in parliamentary and presidential elections given their status as convicted prisoners.

This post discusses and criticises the ‘freshly exercised’ competence of the Russian Constitutional Court, in particular, from the standpoint of public international law.

“the Constitutional Court’s new powers risk gutting the European system of human rights protection in Russia closing of a final avenue help for victims of abuses.”

However, the reaction of the Secretary General of the CoE was more moderate. Mr. Thorbjørn Jagland commented that Russia remains an integral part of the legal space of the Council. He also called upon the Russian parliament to implement the judgement of the Strasbourg Court.

The issue of prisoners’ right to vote has already proved to be critical in relation to the UK, where prisoners serving a custodial sentence do not have the right to vote. A political debate has rumbled on since 2005, when the Grand Chamber of the ECtHR ruled in Hirst v. United Kingdom (n°2) that the British law banning all convicted persons from voting is contrary to Article 3 of Protocol 1 to the ECHR. While the British Conservative Government indicated its lack of intention to bring forward legislation to respond to the judgement, the recent decision of the Russian Constitutional Court goes one step further.

The Constitutional Court acquired its new function to control rulings of human rights bodies as a result of a ‘compromise’. On 14 July 2015, the Russian Constitutional Court issued a decision, in which it refused to declare unconstitutional the 1998 Russian Federal law on Russia’s ratification of the ECHR and its Protocols, as it had been invited to do so by 93 deputies. The MPs had made clear that their plea on the lack of constitutionality was motivated by the allocation of an unprecedented sum of €1,9 milliard to the shareholders of Yukos, as well as by the finding of the ECtHR in Anchugov and Gladkov. In the July decision, the Russian Constitutional Court declared that it could only rule on the constitutionality of a bill to ratify an international treaty. Nevertheless, the Constitutional Court pointed out that the judgements of international bodies, among which the ECtHR, have to be complied with in conformity with the principle of constitutional supremacy. Notably, the Constitutional Court made a direct reference to the ECtHR judgement in Anchugov and Gladkov as being clearly inconsistent with the Russian Constitution. As the guardian of constitutional supremacy, the Russian Court “authorised” the legislator to create a legal mechanism which allows it to rule on the ‘constitutionality’ of any judgement of the ECtHR and declare “impossible to implement” those judgements which it holds inconsistent with the Russian Constitution.

The law entered into force on 14 December 2015, and the finding of the ECtHR in Anchugov and Gladkov case served as the first occasion for the Russian Constitutional Court to exercise a constitutionality review over a binding decision of an international tribunal.

On the formal request of the Ministry of Justice, the Constitutional Court of the Russian Federation ruled that the right to vote implemented in Article 3 of Protocol 1 to the ECHR could not be understood so widely as to cover convicted prisoners’ right to vote. Such an interpretation as given by the ECtHR in Anchugov and Gladkov was declared to be contrary to Article 32(3) of the Russian Constitution (inherited by the Russian constitution from Stalin times). The Russian Court envisaged the only exception to the ban on convicted prisoners’ voting rights being for prisoners serving their sentences at open prisons.

In its lengthy decision, the Russian Constitutional Court confirmed the supremacy of the Russian Constitution over judgements of the ECtHR. The Russian Court therefore exercised a de facto control over the implementation of ECtHR judgements. By a combined interpretation of Articles 15 (1 and 4) of the Russian Constitution, the Russian Court ruled that since Russia cannot ratify a treaty inconsistent with its Constitution, judgements of the ECtHR cannot be grounded on interpretations contrary to the Constitution, thereby cancelling the supremacy of the Constitution.

Although the December law only gives the Russian Constitutional Court the right to review decisions of human right bodies, the Court could easily open the door to decisions of any international law body.

It has to be highlighted that in its decision of 14 July 2015 the Constitutional Court makes an effort to find a legal justification in international law for its future competence. The Russian Constitutional Court invokes both Articles 26 (pacta sunt servanda) and 31 (general rule of treaty interpretation) of the Vienna Convention on the Law of Treaties (the Vienna Convention), claiming that a state can refuse to comply with a decision of the ECtHR which is contrary to the ordinary meaning to be given to the terms of the ECHR in their context and in the light of its object and purpose. The Constitutional Court finds, in even more ambitious terms, that a judgement of the ECtHR cannot be considered binding in the case of a conflict with the norms of jus cogens, among which the Russian Court counts the principle of sovereign equality and the principle of non-interference in internal affairs.

The Constitutional Court also refers to Article 46(1) of the Vienna Convention (provisions of internal law regarding competence to conclude treaties) as the legal basis preventing the applicability of Article 3 to Protocol 1 to the ECHR, suggesting that Russia’s consent to be bound by this provision was invalidated by the fact that its interpretation by the ECtHR is contrary to Russian Constitution.

The suggested interpretation of the Vienna Convention is clearly inaccurate, which makes the Russian Court’s arguments under international law inaccurate. The ECtHR has legal authority to interpret the ECHR, and the state parties have an obligation to execute the judgements of the Strasbourg Court. Article 46(1) of the ECHR establishes an unequivocal legal obligation to comply with the decisions of the ECtHR As a member of the CoE and a state party to the ECHR, Russia remains liable to fulfil the human rights obligations stemming from the ECtHR judgements. In anticipation of the decision of the Russian Constitutional Court, the CoE Commission for Democracy through Law (the Venice Commission), issued an interim opinion judging it “unacceptable” for the Russian Constitutional Court to challenge binding judgements of the European Court.

Above all, Article 27 of the Vienna Convention explicitly aims to prevent any Constitutional Court judgement legally justifying the failure by the state to comply with the treaty. The Russian Constitutional Court is not an exception to this rule.

Russia’s position vis-à-vis the ECtHR judgement is yet another example of the application of international law à la carte. Even if Russia remains in violation of its obligations under international law, there is no mechanism to enforce a decision of the ECtHR and no state has ever been excluded from the CoE. However, it is questionable whether Russia may legally remain within the CoE. The filter of ECtHR judgements by the Russian Constitutional Court is incompatible with CoE membership, which supposes compliance with all judgements of the Strasbourg Court. This was also the message of the President of the ECtHR, Mr. Guido Raimondi, who said in an interview that countries that refuse to enforce judgements made by the ECtHR will “fail to remain part of the system” of the Council. The decision of the Constitutional Court is an express refusal to enforce the ECtHR’s judgement with regard to the prisoners’ right to vote.

A natural parallel can be made with the UK’s stance on prisoner voting and the UK’s continued failure to implementHirst v. UK. However, even if this matter raised concerns as to the UK’s membership of the CoE, it was strictly concerned with prisoner voting. More importantly, there have been no legal acts or mechanisms enforcing or finalising the UK’s defiance of ECtHR judgements. The UK’s position is merely political and is thus able to evolve.

Russia’s position on compliance with ECtHR judgements is radically different, as the open defiance of the binding nature of ECtHR judgements has become structural. Although the judgement of the Constitutional Court concerns the prisoners’ right to vote, this issue has served as a good excuse for Russian authorities to put into practice the new law giving competence to the Constitutional Court with regard to ECtHR judgements generally. With the British example in mind, the blanket ban on convicted prisoners’ voting rights was indeed a mild start for the Constitutional Court. It will perhaps be more difficult to find a legal basis in the Russian Constitution to justify the fact that ECtHR judgements in more sensible political matters are “impossible to implement” in Russia.

4 Responses

The jus cogens claim is interesting and should be viable with respect to actual norms jus cogens, but the two examples claimed are not jc. Sovereignty is not absolute and h.r. violations are not internal affairs. Further, Russia limited it’s Sovereignty by consenting to the ECHR.

This declaration by the Russian Constitutional Court should be required reading for all so-called “Eurosceptics” and “Brexiteers”-in other words we will only follow those rulings of the ECHR that we feel like following(or are politically expedient to do so)!
needless to say this is an intellectual and legal absurdity!

@Jordan: this is precisely why the PIL analysis of the Russian Court is so inaccurate. But isn’t it curious how the principle of sovereignty has been served with all dishes by the URSS and then Russia…
@Terry: I completely agree with you, and it does not promise any good.

My question is whether this is not a result of a underlying loss of legitimacy from the ECtHR. Meaning the Court has pushed the enveloped a bit too far and now countries feel they can do the same. (this is a political analysis and not a legal one)

Natalia Chaeva

Ph.D. in public international law, Université Panthéon-Assas Paris II.
Visiting Fellow at BIICL